Studdard v. Alabama Agricultural & Mechanical University et al

Filing 137

MEMORANDUM OPINION AND ORDER that the Motion for Summary Judgment is GRANTED and a final Judgment will be entered separately as more fully set out herein. Signed by Judge Liles C Burke on 5/21/2019. (AHI)

FILED
2019 May-21 AM 08:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
NAREATHA L. STUDDARD,
Plaintiff,
v.
ALABAMA AGRICULTURAL &
MECHANICAL UNIVERSITY, et al.,

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Case No.: 5:15-cv-1313-LCB

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Nareatha L. Studdard – a former associate professor at Alabama
Agricultural & Mechanical University (“Alabama A&M”) – alleges that she was
retaliated against for exercising rights guaranteed by the Family and Medical
Leave Act of 1993 (“FMLA”). In particular, plaintiff claims that she suffered an
adverse employment action when certain defendants refused to forward her 2012
tenure application for review, when it would have been evaluated under less
stringent standards, and simultaneously requested an extension of her probationary
period.

Plaintiff alleges this action caused her to have to submit her tenure

application the next year, when it was subjected to more stringent criteria, and that
this resulted in the denial of tenure and ultimately her termination from Alabama
A&M.

As described in more detail below, the remaining defendants in this action
filed a Motion for Summary Judgment (doc. 112), along with a supporting brief
and evidentiary submission. Plaintiff filed a response (doc. 123), which the Court
ordered plaintiff to reformat (see doc. 133 (reformatted response)). The remaining
defendants then filed a reply (doc. 129). Therefore, the Motion for Summary
Judgment is ready for review. For the reasons discussed in this memorandum
opinion, the Court will grant the Motion for Summary Judgment.
I.

BACKGROUND
Plaintiff initiated this action on August 5, 2015, against several defendants.

(Doc. 1). Plaintiff later amended her complaint (doc. 79). Plaintiff’s amended
complaint alleges one count of FMLA retaliation. Plaintiff appears to bring this
count against defendants (1) Alabama A&M; (2) the Board of Trustees of Alabama
A&M (the “Board”); (3) former governor and president of the Board, Robert
Bentley (“Bentley”) in his official capacity; (4) individual members of the Board
Kevin Ball, Ginger Harper, John O. Hudson, III, James D. Montgomery, Sr., Dr.
Hattie N. Myles, Chris Robinson, Andre Taylor, Velma J. Tribue, and Dr. Jerome
Williams in their official capacities (collectively, “the Trustees”); (5) provost and
vice president for Academic Affairs, Dr. Daniel Wims (“Dr. Wims”), in his official
and individual capacity; (6) president of Alabama A&M, Dr. Andrew Hugine, Jr.
(“Dr. Hugine”), in his official and individual capacity; (7) dean of the College of
2

Business and Public Affairs, Dr. Delmonize Smith (“Dr. Smith”), in his official
capacity and as successor to the former dean, Dr. Amin Sarkar; and (8) the
chairman of the Department of Management, Marketing, and Logistics 1, Larry
McDaniel (“Dr. McDaniel”), in his individual and official capacity. (Doc. 79, pp.
2-3). 2
Following the filing of the amended complaint, several motions to dismiss
(docs. 80 and 81) were filed. Before the Court addressed the motions to dismiss,
plaintiff voluntarily dismissed Bentley and the Trustees.

(Docs. 85, 86).

On

March 31, 2017, the Court issued a memorandum opinion (doc. 91) addressing one
of the motions to dismiss (doc. 80); the other motion to dismiss (doc. 81) was
denied as moot. 3 In particular, the Court dismissed Alabama A&M, the Board, and
Dr. Hugine, Dr. Wims, and Dr. McDaniel in their individual capacities. (Id. at 20).
The Court denied the motion to dismiss (doc. 80) to the extent that it requested
dismissal of the official-capacity claims against Dr. Hugine, Dr. Wims, Dr. Smith,
and Dr. McDaniel for injunctive relief. (Id.). Therefore, at this juncture, the

1

The Department of Management, Marketing, and Logistics was formerly known as the
Department of Management and Marketing.
2

The Court says “appears” to bring this count against these defendants because, while plaintiff
lists these defendants at the beginning of her amended complaint, the heading of Count One – the
only count in the amended complaint – lists as defendants (1) Dr. Hugine, Dr. Wims, and Dr.
McDaniel in their official and individual capacities; and (2) Bentley, Smith (as successor to
Sarkar), and the Trustees, in their official capacities only. (Doc. 79, p. 14).
3

This action was reassigned to the undersigned on October 26, 2018.
3

FMLA retaliation claim exists against Dr. Hugine, Dr. Wims, Dr. Smith, and Dr.
McDaniel in their official capacities solely for injunctive relief. The Court will
refer to these three defendants as “the remaining defendants.”
With respect to the following facts, the Court accepts, as true, any fact not
expressly disputed by either party. (Doc. 131; Doc. 133, p. 7 n.1); Fed. R. Civ. P.
56(a) (“The court shall grant summary judgment if . . . there is no genuine dispute
as to any material fact . . . .”).
A.

Plaintiff begins her employment at Alabama A&M

From 2004 to 2009, plaintiff was employed as an assistant professor at
Arkansas State University. (Doc. 79, p. 7; Doc. 112-10, p. 23 (Studdard Dep., p.
88, lines 4-10); Doc. 124-18, p. 25 (Studdard Aff., Ex. A)). In late 2008 or early
2009, plaintiff ran into Dr. McDaniel, who had been a professor of hers while she
was a student at Alabama A&M, at a continuing education event. (Doc. 124-18, p.
11 (Studdard Aff., ¶ 27)). Dr. McDaniel encouraged plaintiff to apply for an
associate professor opening in his department at Alabama A&M.

(Id.).

Dr.

McDaniel was (and still is) the chair of the Department of Management,
Marketing, and Logistics in the College of Business at Alabama A&M. (Doc. 1121, p. 13; Doc. 112-17, p. 2 (McDaniel Aff. ¶ 2)). As a result of her encounter with
Dr. McDaniel, plaintiff applied for the position at Alabama A&M and was

4

appointed as an associate professor, a tenure track position, in August 2009. (Doc.
79, p. 7; Doc. 112-1, p. 12; Doc. 112-10, p. 72 (Studdard Dep., p. 282, lines 8-11)).
At the time that plaintiff applied for the position at Alabama A&M, she
knew that she would not be approved for tenure at Arkansas State University.
(Doc. 112-10, p. 24 (Studdard Dep., p. 91, lines 7-16)). Plaintiff has testified that,
in prior years at Arkansas State University, she had been on track for tenure;
however, in her fourth year, she received notification that she was not on track for
tenure. (Doc. 112-10, p. 25 (Studdard Dep., p. 94, lines 6-14)). Plaintiff states that
this was not the reason that she applied for the position at Alabama A&M. Rather,
plaintiff wanted to teach at a historically black university and be closer to her
mother, among other things. (Doc. 112-10, p. 28 (Studdard Dep., p. 106, line 10 –
p. 107, line 7)).
B.

Description of remaining defendants

Dr. Hugine is the president of Alabama A&M and has been in that position
since July 2009. (Doc. 79, p. 6; Doc. 112-1, pp. 12-13). Dr. Hugine is responsible
for making the final decision with respect to granting tenure to faculty members.
(Doc. 112-1, p. 13; Doc. 112-10, p. 16 (Studdard Dep., p. 59, lines 17-20)).
Dr. Wims is the provost and vice president for Academic Affairs and
Research. (Doc. 112-1, p. 13). Dr. Wims has been in that position since April
2010. (Doc. 112-15, p. 2 (Wims Aff., ¶ 2)). Dr. Wims provides administration
5

oversight for the divisions of Academic Affairs and Research at Alabama A&M.
(Doc. 112-1, p. 13; Doc. 112-15, p. 2 (Wims Aff., ¶ 3)). Part of Dr. Wims’s duties
includes reminding faculty members of their deadlines to apply for tenure. (Doc.
112-1, p. 13; Doc. 112-15, pp. 2-3 (Wims Aff., ¶ 3); Doc. 112-10, p. 21 (Studdard
Dep., p. 79, lines 11-16)).

Dr. Wims also provides recommendations to Dr.

Hugine regarding whether tenure applicants should receive tenure. (Doc. 112-1, p.
13; Doc. 112-15, pp. 2-3 (Wims Aff., ¶ 3); Doc. 112-10, p. 19 (Studdard Dep., p.
71, lines 8-15)). Dr. Wims was not plaintiff’s direct supervisor. (Doc. 112-10, p.
22 (Studdard Dep., p. 82, lines 2-5)).
Dr. McDaniel is the chair of the Department of Management, Marketing,
and Logistics in the College of Business. (Doc. 112-1, p. 13; Doc. 112-17, p. 2
(McDaniel Aff., ¶ 2)).

Dr. McDaniel’s responsibilities include providing

evaluations of faculty members and participating in the submission of tenure
materials for faculty members in his department. (Doc. 112-1, p. 14; Doc. 112-17,
pp. 2-3 (McDaniel Aff., ¶ 3)).
Dr. Smith is the current dean of the College of Business and Public Affairs.
(Doc. 79, ¶ 9; Doc. 112-1, p. 14). Dr. Smith’s predecessor was Dr. Sarkar, who
was, as described below, involved in some of the events at issue in this lawsuit.
(Id.).

6

C.

2003 Faculty Handbook and 2011 Faculty Handbook

When plaintiff was hired at Alabama A&M, the 2003 Faculty Handbook
was in effect. (Doc. 112-10, p. 68 (Studdard Dep., p. 267, lines 2-22)). Under the
2003 Faculty Handbook, a person appointed as an associate professor would serve
a probationary term of three academic years. (Doc. 112-15, pp. 40, 60 (Wims Aff.,
Ex. 1)). The 2003 Faculty Handbook stated that a faculty member may submit an
application for tenure in the fall semester of the final year of the required period for
a certain rank. (Doc. 112-15, p. 61 (Wims Aff., Ex. 1)). Thus, it appears that an
associate professor would apply for tenure in the fall of the third year of his or her
probationary period. The probationary period could be extended upon written
justification requested by the dean and department chair and approved by the vice
president for Academic Affairs. (Doc. 112-15, p. 60 (Wims Aff., Ex. 1)). If tenure
was denied, then the faculty member would be given a one-year notice of
termination of service. (Doc. 112-15, p. 61 (Wims Aff., Ex. 1)). The requirements
for tenure under the 2003 Faculty Handbook were as follows:
A. Letter of application
B. At least two letters of recommendations from
immediate supervisors, chair, and dean.
C. Current curriculum vita.
D. Verification of years of service by the Office of
Human Resources.
7

E. A minimum of last three years of continuous
membership in a professional society in discipline.
F. Teaching Portfolio Containing:
1. Course outlines, faculty evaluations,
evaluations for all courses taught.

student

2. Development of innovative pedagogical methods
and materials, new courses, major revisions in old
courses, etc.
3. Professional development to enhance teaching
effectiveness.
G. Scholarly Activities
Publication in refereed journals, scholarly books,
chapters in scholarly books, research reports, attendance
at scientific/professional meetings, reviewer for journal,
proposals, creative works, etc. related to the discipline.
Service
Evidence of: Service to the university by being
member/chair of various committees, any administrative
role at the university.
Chair of graduate thesis
dissertation committees, service on student advisory
committees, service as a mentor for students/research.
Evidence of: Service to the public and community.

(Doc. 112-15, pp. 61-62 (Wims Aff., Ex. 1) (emphasis added)).
The 2003 Faculty Handbook was later amended and became the 2011
Faculty Handbook. Under the 2011 Faculty Handbook, the probationary term for
an associate professor was increased to four academic years. (Doc. 112-16, pp. 45,
8

74 (Wims Aff., Ex. 2)). By April 1st of the third probationary year, the Office of
Academic Affairs would notify the candidate of the requirement to apply for tenure
in the next academic year.

(Doc. 112-16, pp. 45-46 (Wims Aff., Ex. 2)).

According to the 2011 Faculty Handbook, “[f]aculty not recommended for tenure
[would] be notified that their next year will be their terminal year.” (Doc. 112-16,
p. 46 (Wims Aff., Ex. 2)). Similar to the 2003 Faculty Handbook, the probationary
period could be extended upon written recommendation and justification by the
dean and the department chair and approved by the provost and vice president of
Academic Affairs. (Doc. 112-16, p. 74 (Wims Aff., Ex. 2)).
The requirements for the 2011 Faculty Handbook were as follows:
A.

A Letter of Application;

B.

At least two letters of recommendation from immediate
supervisors (i.e., chair and dean);

C.

The weights given to each of the three areas of faculty
responsibility (teaching, research and service (extension);

D.

A current curriculum vitae;

E.

Verification of years of service and probationary period by the
Office of Human Resources;

F.

Documentation of continuous membership in a professional
learned society to include the last three years at a minimum;

G.

Teaching/Advisement Portfolio containing:

9

1. Course syllabi reflecting student learning outcomes and
course objectives, faculty evaluations, and student
evaluations for all courses taught from the last three years;
2. Demonstration of the use of innovative pedagogical methods
and materials such as development of new courses, infusion
of technology into the instructional program, major revision
and updating of courses to reflect changes in the field;
3. Attendance at professional development activities designed
to improve teaching effectiveness;
4. Successful student advisement and mentoring practices;
5. Assessment of student learning and efforts to modify
courses based on these results;
H.

A minimum of three (3) scholarly products (refereed, juried
and/or peer reviewed) and/or competitively funded grants,
where the applicant is Primary Author or Primary Investigator
within the probationary period. Scholarly activities include
publications in professional and refereed journals, scholarly
books, chapters in scholarly books, presentations at
scientific/professional meetings, funded research projects,
juried creative works, and other activities related to high
performance in one’s discipline. Evidence of peer-reviewed
editorial policy for each of the papers must be provided. If the
work is creative, evidence is required to show they were juried
or highly significant in the field of endeavor.

I.

Evidence of having made a contribution to the University
through service as outlined in 4.2.2.3. This may include but is
not limited to serving as a member or as chair of various
committees or in any administrative role at the University,
chairing of graduate thesis/dissertation committees, and serving
on student advisory committees or as a mentor for student
research.

(Doc. 112-16, pp. 78-79 (Wims Aff., Ex. 2) (emphasis added)).
10

On their face, the requirements for scholarly activities in the 2011 Faculty
Handbook are not the same as the 2003 Faculty Handbook. Dr. Wims, however,
has testified that there were no substantive changes in tenure criteria between the
2003 Faculty Handbook and the 2011 Faculty Handbook; rather, he states that the
“sole purpose of the revisions to the tenure requirements in the 2011 Handbook
was to clarify the practices that were ongoing under the 2003 Handbook.” (Doc.
112-15, p. 3 (Wims Aff., ¶¶ 6-8)). In particular, Dr. Wims asserts that the 2011
Faculty Handbook did not impose a new requirement of three scholarly products in
order for a faculty member to obtain tenure. (Doc. 112-15, pp. 3-4 (Wims Aff., ¶
7)).

Rather, according to Dr. Wims, Alabama A&M had always, in practice,

required at least three scholarly products as a requisite for tenure under the 2003
Faculty Handbook.

Dr. Wims states that the 2011 Faculty Handbook merely

codified this practice.

(Id.).

Dr. Wims also asserts that the 2011 Faculty

Handbook clarified the requirement that the three scholarly products be created
within the designated probationary period. (Doc. 112-15, p. 4 (Wims Aff., ¶ 8)).
Dr. Wims testified that the Faculty Senate would not approve any substantive
changes to the 2003 Faculty Handbook. (Id.). According to Dr. Wims, it was
verbally agreed among the Board, the faculty handbook committee, and the faculty
senate that the 2003 Faculty Handbook tenure criteria would remain in effect from
May 2012 until the beginning of the next academic year, and the 2011 Faculty
11

Handbook would be fully implemented in August 2013. (Doc. 112-3, pp. 6-7
(Wims Dep., p. 18, 12 – p. 21, line 23)). However, no other evidence is provided
in support of Dr. Wims’s assertions.
D.

Plaintiff’s FMLA leave and return to work

Plaintiff became pregnant in 2011 and had her first child in November 2011.
(Doc. 124-18, p. 15 (Studdard Aff., ¶ 46)). Plaintiff testified that Dr. McDaniel
exhibited a negative change in attitude toward her after she became pregnant.
(Doc. 124-18, p. 14 (Studdard Aff., ¶ 45)). In particular, plaintiff alleges that Dr.
McDaniel abruptly changed a class schedule so that it would begin at 7 p.m.
instead of 4 or 5 p.m. (Id.).

This caused plaintiff to walk back to her vehicle

alone in the dark after the class ended at 10 p.m. (Id.).
Plaintiff took medical leave pursuant to the FMLA from November 2011 to
early January 2012 due to pregnancy and delivery complications. (Doc. 112-1, p.
15; Doc. 112-10, p. 60 (Studdard Dep., p. 235, lines 13-16)).

Plaintiff was

hospitalized three times during this time. (Doc. 112-10, p. 81 (Studdard Dep., p.
317, line 12 – p. 319, line 12)). Plaintiff asserts that shortly after she returned to
work, on January 4, 2012, she was required to attend a QEP mandatory workshop.
(Doc. 124-18, p. 15 (Studdard Aff., ¶ 47)). Plaintiff states that, while she attended
the morning session of the mandatory workshop, she was unable to attend the
entire day due to her continuing recuperation. (Id.). Plaintiff further asserts that,
12

although she informed Dr. McDaniel’s office of her absence, she was later
reprimanded by then-dean, Dr. Sarkar; that reprimand went into her personnel file.
(Id.; Doc. 124-7, p. 1 (Pl. Ex. 7)). Although plaintiff returned to work in early
January 2012, she testified that she was still recovering from her medical issues
and that she started to re-emerge as a researcher around 2013, which is when she
tried “to get things back in place.” (Doc. 112-10, p. 79 (Studdard Dep., p. 310,
lines 1-16)).
Plaintiff also describes some issues with respect to her annual faculty
evaluations, described in more detail in the next section.
E.

Plaintiff’s 2011-2012 evaluation

Dr. McDaniel completed a 2011-2012 faculty evaluation of plaintiff, which
covered August 2011 to May 2012.

(Doc. 112-14 (Studdard Dep., Ex. 12)).

Plaintiff’s numerical score fell into the “Exceptional” category in the 2011-2012
evaluation.

(Doc. 112-12, p. 34 (Studdard Dep., Ex. 12)). On the 2011-2012

evaluation, Dr. McDaniel hand wrote, “Encourage publications.” (Doc. 112-10, p.
78 (Studdard Dep., p. 308, lines 1-7); Doc. 112-14, p. 34 (Studdard Dep., Ex. 12)).
Plaintiff understood this to mean that Dr. McDaniel wanted a publication. (Doc.
112-10, p. 80 (Studdard Dep., p. 314, lines 8-13)). Plaintiff also testified that Dr.
McDaniel generally encouraged faculty members to publish. (Doc. 112-10, p. 77
(Studdard Dep., p. 303, lines 15-22)).
13

Dr. McDaniel also hand wrote on the 2011-2012 evaluation that plaintiff had
“not attended conference as agreed upon as a goal for 2012-2013.” (Doc. 112-17,
p. 13 (McDaniel Aff., Ex. 3)). Plaintiff asserts that this particular comment was
added by Dr. McDaniel without her knowledge, and that it was a requirement not
even in existence during the 2011-2012 time period which the evaluation covered.
(Doc. 124-18, pp. 15-16 (Studdard Aff., ¶ 48)).
F.

Plaintiff’s probationary period is extended

On May 18, 2012, Dr. Wims sent plaintiff a memorandum reminding her
that she was “to apply for tenure this upcoming academic year 2012-2013.” (Doc.
112-2, p. 15; Doc. 112-16, p. 155 (Wims Aff., Ex. 3)). The memorandum stated
that “while the promotion/tenure processes will follow those outlined in the 2011
Faculty Handbook, your dossier will be evaluated based upon the criteria in the
2003 Faculty Handbook.” (Id.; Doc. 112-10, p. 14 (Studdard Dep., p. 49, lines 210)). The memorandum stated that the tenure application was to be submitted to
the department chairperson (i.e., Dr. McDaniel), by September 7, 2012. (Doc.
112-1, p. 16; Doc. 112-16, p. 155 (Wims Aff., Ex. 3)).
Plaintiff testified that she submitted her first application for tenure in the fall
of 2012. (Doc. 112-10, p. 39 (Studdard Dep., p. 151, lines 14-17)). Plaintiff,
however, could not remember who she left it with, whether she left it at Dr.
McDaniel’s office, or whether Dr. McDaniel ever reviewed it. (Doc. 112-10, p. 56
14

(Studdard Dep., p. 218, line 3 – p. 221, line 5)). The remaining defendants deny
that plaintiff submitted a 2012 tenure application.

In particular, Dr. McDaniel

testified that he never received an application from plaintiff in the fall of 2012.
(Doc. 112-6, p. 6 (McDaniel Dep., p. 17, lines 9-16)). Dr. Wims also attested that
plaintiff did not apply for tenure in the 2012-2013 academic year.

(Doc. 112-15,

p. 5 (Wims Aff., ¶ 11). Regardless, it is undisputed that plaintiff’s 2012 tenure
application did not proceed through the normal tenure review process. (See Doc.
112-10, p. 63 (Studdard Dep., p. 247, line 22 through p. 248, line 3) (testifying that
promotion and tenure review committee never reviewed her 2012 tenure
application)).

Instead, the probationary period for plaintiff, i.e., the period in

which a tenure-track applicant can apply for tenure, was extended to August 2013. 4
The parties dispute, however, how this extension came to fruition.
Dr. McDaniel testified that during a meeting in 2012 with plaintiff, he
discussed with her whether she should apply for tenure that academic year. (Doc.
112-6, p. 6 (McDaniel Dep., p. 17, line 17 – p. 18, line 20); Doc. 112-7, p. 3
(McDaniel Aff., ¶ 5)). Dr. McDaniel stated that he offered to seek a one-year
extension of plaintiff’s probationary period on her behalf, something that he
thought plaintiff appeared to be very appreciative of. (Id.). In other words, Dr.
4

As discussed in more detail below, there are two letters in the record that were sent in the fall of
2012 that request an extension of plaintiff’s probationary period: one that requests until an
extension until August 2013 and one that requests an extension until July 2014. Based on the
undisputed facts in evidence, the Court assumes that the request to extend plaintiff’s
probationary term to August 2013 was the request that was granted.
15

McDaniel claims that it was plaintiff’s decision whether to submit a 2012 tenure
application or to take him up on his offer to request an extension of her
probationary period.

(Id.).

Dr. McDaniel claims that his offer to request the

extension was because of his concern regarding plaintiff’s lack of scholarly
productivity. (Id.). Dr. McDaniel further claims that he offered to seek the oneyear extension on plaintiff’s behalf so that she could engage in scholarly activities
to bolster her tenure application. (Id.).
On the other hand, plaintiff testified that, after she received the May 18,
2012, memorandum from Dr. Wims, she had a meeting with Dr. McDaniel and Dr.
Sarkar; in that meeting, plaintiff stated that she was told that her 2012 tenure
application was going to be held back, and she had no choice in the matter. (Doc.
112-10, p. 57 (Studdard Dep., p. 222, lines 1-13, p. 223, lines 4-18); Doc. 124-18,
p. 4 (Studdard Aff., ¶ 9)). Plaintiff told them that she wanted her application to go
forward anyway. (Doc. 112-10, p. 57 (Studdard Dep., p. 222, line 10)). This
meeting occurred approximately nine months after plaintiff’s FMLA leave. (Doc.
112-10, p. 67 (Studdard Dep., p. 22, lines 17-23)).
On October 11, 2012, Dr. McDaniel and Dr. Sarkar sent a letter to Dr. Wims
requesting that the “probationary period [for plaintiff] be extended to July 2014.”
(Doc. 112-10, pp. 80-81 (Studdard Dep., p. 316, line 14 through p. 317, line 11);
Doc. 112-17, p. 7 (McDaniel Aff., Ex. 1)).
16

The letter further stated, “The

justification for this request is that [plaintiff] encountered some medical
complications during her pregnancy which resulted in an extended hospital stay
medical leave. Your favorable response [to] this [sic] this request would be greatly
appreciated.” (Id.).
In a letter dated October 22, 2012, Dr. Wims requested “documentation, in
reference to medical complications that was listed as justification in” the October
11, 2012, letter requesting an extension of plaintiff’s probationary period until July
2014. (Doc. 112-1, p. 17; Doc. 112-16, p. 158 (Wims Aff., ¶ 11, Ex. 4). Plaintiff
submitted the requested documentation. (Doc. 112-16, p. 160 (Wims Aff., ¶ 5)).
The Court pauses to note that there is another letter in the record dated
November 30, 2012, that Dr. McDaniel and Dr. Sarkar sent to Dr. Wims. The
November 30, 2012, letter requested that the probationary period of [plaintiff] . . .
be extended to August 2013.” (Doc. 112-10, p. 81 (Studdard Dep., p. 320, lines 522); Doc. 112-14, p. 43 (Studdard Dep., Ex. 15) (emphasis added)). The letter
further stated, “The justification for this request is that [plaintiff] encountered some
medical complications during her pregnancy, which resulted in an extended
hospital stay and medical leave.”

(Id.).

Plaintiff understood that when she

received the November 30, 2012, letter, she would be given additional time to
apply for tenure. (Doc. 112-10, p. 82 (Studdard Dep., p. 321, lines 12-16)). It is
not clear from the record, however, why there were two letters from Dr. McDaniel
17

and Dr. Sarkar in the fall of 2012 requesting an extension of plaintiff’s
probationary period for that year, nor do the parties explain this discrepancy.
Additionally, the parties cite to the letters interchangeably, essentially treating
them as one letter requesting that the probationary period of plaintiff be extended.
Consequently, the Court will do the same and, based on the undisputed facts in the
record, assumes that plaintiff’s probationary period was extended for one-year, or
until August 2013, as described in more detail below.
On December 4, 2012, Dr. Wims sent a memorandum to plaintiff informing
her that the request to extend her probationary period was approved. (Doc. 79, ¶
24; Doc. 112-1, p. 17; Doc, 112-16, p. 12 (Wims Aff., Ex. 6)). The December 4,
2012, memorandum informed plaintiff that she was to apply for tenure by
September 6, 2013. (Id.). The December 4, 2012, memorandum also noted that
“the promotion/tenure processes will follow those outlined in the 2011 Faculty
Handbook, and your dossier will be evaluated based upon the stated criteria in
the 2011 Faculty Handbook.” (Id.) (emphasis in original)).
G.

Plaintiff’s 2012-2013 evaluation

Plaintiff’s next evaluation for the next year, the 2012-2013 evaluation,
covered the time period from August 2012 to May 2013. (Doc. 112-14, p. 22
(Studdard Dep., Ex. 11)).

When it came time for her 2012-2013 evaluation,

plaintiff testified at her deposition that she met with Dr. McDaniel about it, and
18

they agreed to the scoring on it. (Doc. 112-10, p. 67 (Studdard Dep., p. 297, line
13 – p. 298, line 11)).

Plaintiff admits that after this meeting, Dr. McDaniel

informed her that another meeting was warranted to assess her 2012-2013
evaluation; however, plaintiff objected to the meeting, and it did not occur. (Doc.
112-10, p. 87 (Studdard Dep., p. 343, lines 4-14); Doc. 112-14, p. 67 (Studdard
Dep., Ex. 23)).
Plaintiff further testified that, after their initial meeting where they agreed to
a score, Dr. McDaniel later downgraded her score without discussing it with her,
causing her overall rating to go from “Exceptional” to “Above Average.” (Doc.
112-10, pp. 76-77 (Studdard Dep., p. 298, line 2 through p. 17)). As a result,
plaintiff wrote on the 2012-2013 evaluation that Dr. McDaniel had “updated &
changed Sep 2013.” (Doc. 112-14, p. 22 (Studdard Dep., Ex. 11)). The absence of
a publication was noted in the 2012-2013 evaluation by Dr. McDaniel.

In

particular, the 2012-2013 evaluation stated that plaintiff had not met her 20122013 goal and had not published articles any since 2011. (Doc. 112-14, p. 27
(Studdard Dep., Ex. 11)).
Plaintiff alleges that Dr. McDaniel never provided her with a copy of her
2012-2013 evaluation to be submitted with her 2013 tenure application. (Doc. 79,
¶¶ 29-3; Doc. 124-18, p. 19 (Studdard Aff., ¶ 58)).

Plaintiff testified that,

following this event, she drafted a memorandum of record, which addressed the
19

2012-2013 evaluation by Dr. McDaniel, as well as the alleged withholding of her
2012 tenure application by Dr. McDaniel and then-dean Sakar. (Doc. 124-8, pp. 12 (Pl. Ex. 8); Doc. 124-18, p. 19 (Studdard Aff., ¶ 59)).
Dr. McDaniel, on the other hand, testified that he and plaintiff met about her
2012-2013 evaluation, but that he disagreed with her self-evaluation and therefore
he made changes to the 2012-2013 evaluation. (Doc. 112-6, pp. 11-12 (McDaniel
Dep., p. 40, line 18 – p. 41, line 13)). Dr. McDaniel testified that a time or two
plaintiff did not come back to retrieve her final evaluation. (Doc. 112-6, p. 11
(McDaniel Dep., p. 39, lines 2-19)).
H.

Plaintiff’s 2013 tenure application

Plaintiff applied for tenure in fall of 2013 (i.e., for the 2013-2014 academic
year) by submitting it to the Promotion and Tenure Committee of the College of
Business and Public Affairs. (Doc. 112-10, p. 64 (Studdard Dep., p. 250, line 21 p. 251, line 6); Doc. 124-18, p. 19 (Studdard Aff., ¶ 60); see also Doc. 112-16, p.
165 (Wims Aff., Ex. 7) (correspondence dated November 21, 2013, acknowledging
receipt of tenure application from plaintiff)). In a memorandum dated October 11,
2013, all members of the Promotion and Tenure Committee of the College of
Business and Public Affairs recommended plaintiff for tenure. (Doc. 112-10, p. 64
(Studdard Dep., p. 251, line 10 through p. 252, line 1); Doc. 124-9, p. 1 (Pl. Ex. 9);
Doc. 124-18, p. 7 (Studdard Aff., ¶ 17)). The Promotion and Tenure Committee of
20

the College of Business and Public Affairs did note, however, that plaintiff did not
have a letter of recommendation from her department chair, i.e., Dr. McDaniel.
(Doc. 124-9, p. 2 (Pl. Ex. 2)). Dr. McDaniel testified that plaintiff did not submit
the 2013 tenure application to him, and therefore he did not make a
recommendation; however, if he had received the 2013 tenure application, he
would not have recommended plaintiff for tenure.

(Doc. 112-6, pp. 11, 14

(McDaniel Dep., p. 37, lines 17-22 and p. 52, lines 9-23)). 5 Additionally, in a
letter to the Promotion and Tenure Committee dated October 15, 2013, Dr. Jones,
the interim dean, stated that she supported plaintiff’s application for tenure. (Doc.
124-10, p. 1 (Pl. Ex. 10)).
The recommendation by the Promotion and Tenure Committee of the
College of Business and Public Affairs was then sent to the university-wide
Promotion and Tenure Committee. (Doc. 112-10, p. 64 (Studdard Dep., p. 252,
lines 2-9)). The Promotion and Tenure Committee did not recommend plaintiff for
tenure. (Doc. 112-10, p. 65 (Studdard Dep., p. 254, lines 8-12); Doc. 112-16, p.
169 (Wims Aff., Ex. 8)). The memorandum documenting this decision stated that
5

On September 20, 2013, Dr. McDaniel sent a letter to Dr. Barbara Jones, interim dean of the
College of Business and Public Affairs, requesting that plainitff’s probationary period be
extended to August 2014 due to medical complications in her pregnancy which resulted in an
extended hospital stay and medical leave in 2012. (Doc. 112-17, pp. 4-5 (McDaniel Aff., ¶ 10)).
Dr. McDaniel testified that he made this request so that plaintiff would have the opportunity to
obtain tenure. (Id.). Dr. McDaniel stated that he did not hear from plaintiff regarding this
second request for an extension of her probationary period; instead, he became aware that she
had submitted her 2013 tenure application to Dr. Jones without submitting it to him. (Id.).
21

the reason for denying plaintiff tenure was for “insufficient number of
publications.” (Doc. 112-16, p. 169 (Wims Aff., Ex. 8)). The memorandum cited
the 2011 Faculty Handbook requirement that a candidate have a minimum of three
scholarly products where the tenure applicant is primary author or investigator and
noted that plaintiff only had one peer-reviewed publication. (Id.).
Dr. Wims then reviewed plaintiff’s 2013 application for tenure and also did
not recommend her for tenure. (Doc. 112-10, p. 65 (Studdard Dep., p. 254, lines
13-17); Doc. 112-15, p. 6 (Wims Aff., ¶ 14 and Ex. 9)).

A memorandum

documenting Dr. Wims’s review and decision is in the record.

It states that

plaintiff provided evidence of two peer reviewed scholarly products, one refereed
journal article and one peer reviewed conference presentation as first author. (Doc.
112-16, pp. 6, 179 (Wims Aff., ¶ 14 and Ex. 9)). It further stated that the rationale
for denial of tenure was lack of refereed, juried, and/or peer reviewed scholarly
productivity as first author during the probationary period. (Id.).
The final decision with respect to plaintiff’s 2013 tenure application was
then left to Dr. Hugine. (Doc. 112-5, p. 5 (Hugine Dep., p. 13, lines 7-22)). Dr.
Hugine testified that he reviews the recommendations from the Promotion and
Tenure Committee and Dr. Wims, and if there is concurrence between the two, he
also concurs with the recommendation. (Id.). Ultimately, Dr. Hugine did not
approve plaintiff for tenure. (Doc. 112-10, p. 65 (Studdard Dep., p. 254, lines 1822

21); Doc. 112-16, p. 182 (Wims Aff., Ex. 10)). In a letter dated March 27, 2014,
plaintiff was notified that her application for tenure had been denied “based on lack
of sufficient juried, peer reviewed and/or refereed scholarly productivity as first
author during the probationary period.” (Doc. 112-16, p. 182 (Wims Aff., Ex.
10)). As a result, the letter stated that the 2014-2015 academic year would be
plaintiff’s last at Alabama A&M. (Id.).
Plaintiff appealed the final tenure decision made by Dr. Hugine. (Doc. 11210, pp. 65, 83 (Studdard Dep., p. 254, line 22 - p. 255, line 1 and p. 327, line 20 p. 328, lines 14); Doc. 112-14, p. 56 (Studdard Dep., Ex. 19)). Specifically, in a
letter dated April 18, 2014, plaintiff wrote to Dr. Hugine, seeking reconsideration
of the tenure decision. (Doc. 112-16, p. 184 (Wims Aff., Ex. 11)). In the April 18
letter, plaintiff asserted, among other things, that her tenure application should
have been evaluated under the criteria set forth in the 2003 Faculty Handbook, not
the 2011 Faculty Handbook. (Id.).
In response to plaintiff’s appeal, Dr. McDaniel wrote a letter to Dr. Wims.
(Doc.112-6, p. 18 (McDaniel Dep., p. 67, line 19 – p. 21); Doc. 124-13 (Pl. Ex.
13)). In that letter, Dr. McDaniel responded to plaintiff’s appeal and listed reasons
why he did not support her application for tenure. (Id.). Dr. McDaniel testified
that he did so to correct inaccuracies in plaintiff’s April 18 letter. Doc. 112-6, p.
19 (McDaniel Dep., p. 71, lines 2-9)). Dr. Wims did not request that Dr. McDaniel
23

write this letter, and it appears that this was not the normal course of action. (Id.;
see also Doc. 112-3, p. 16 (Wims Dep., p. 57, line 20 - p. 58, line 7)). Dr. Wims
does not recall receiving this letter, however, and it was not forwarded to the
Tenure and Promotion Appeals Committee. (Doc. 112-3, p. 11 (Wims Dep., p. 37,
line 19 – p. 38, line 5 and p. 39, lines 12-17)).
In a memorandum dated May 8, 2014, the Tenure and Promotion Appeals
Committee informed Dr. Hugine that they found no impropriety, inappropriate
behavior, or mismanagement of the pre-tenure review process and concurred that
tenure should be denied based on insufficient scholarly productivity. (Doc. 11216, p. 187 (Wims Aff., Ex. 12)).
In a letter dated May 15, 2014, Dr. Hugine informed plaintiff that he agreed
with the recommendation from the Tenure and Promotion Appeals Committee and
that he had decided to uphold his original decision to deny tenure. (Doc. 112-14
(Studdard Dep., Ex. 20)).

The letter reiterated that the 2014-2015 school year

would be plaintiff’s last. (Id.). Plaintiff’s employment with Alabama A&M ended
in May 2015. (Doc. 112-10, p. 42 (Studdard Dep., p. 161, lines16-18)).
Plaintiff did not communicate directly with Dr. Hugine regarding her FMLA
medical leave. (Doc. 112-10, p. 16 (Studdard Dep., p. 60, lines 4-14)). Plaintiff
does not know whether Dr. Hugine knew if she took FMLA leave.

(Id.).

Additionally, plaintiff testified that she does not have any information that Dr.
24

Hugine reviewed any documents that stated that she had taken FMLA leave. (Doc.
112-10, p. 16 (Studdard Dep., p. 61, lines 2-13)). Dr. Hugine does not recall
anyone having brought plaintiff’s extended hospital stay and medical leave to his
attention. (Doc. 112-5, pp. 6-7 (Hugine Dep., p. 20, line 22 – p. 21, line 8)).
I.

Summary of plaintiff’s publications

Plaintiff testified that she authored four peer-reviewed publications while at
Arkansas State. (Doc. 124-18, p. 11 (Studdard Aff., ¶ 26)). (But cf. Doc 130, pp.
16-17 (Winn Aff., Ex. B)). Plaintiff published a peer-reviewed publication on June
19, 2009, which was after her offer from Alabama A&M, but before she began her
employment there. (Doc. 124-18, p. 10 (Studdard Aff., ¶ 25)). Plaintiff admits
that this publication was not written or published while employed at Alabama
A&M. (Doc. 112-10, p. 34 (Studdard Dep., p. 132, lines 6-16)).
Plaintiff published a refereed publication as first chair in 2011 while
employed at Alabama A&M. (Doc. 124-18, p. 13 (Studdard Aff., ¶ 35)). There is
conflicting testimony in the record regarding the title of that publication, but it
does not appear to be disputed that plaintiff did, in fact, publish an article in 2011.
(Compare Doc. 124-18, p. 3 (Studdard Aff., ¶ 6) (alleging refereed publication in
2011 was titled, “Social Entrepreneurship: Managing Strategic Decision in Social
Entrepreneurial Organizations”) with Doc. 123, p. 25 (alleging 2011 peer reviewed
article as primary author was entitled, “Fostering Entrepreneurship in Secondary
25

Education”) with Doc. 112-10 (Studdard Dep., p. 126, lines 14-19) (“Social
Entrepreneurship: Managing Strategic Decisions in Social Entrepreneurial
Organizations” published in 2011)).

It is undisputed that plaintiff did not have a

publication in the January 2012 to May 2013 time frame. (Doc. 112-10, p. 79
(Studdard Dep., p. 308, line 16 – page 309, line 3); Doc. 112-10, p. 80 (Studdard
Dep., p. 313, lines 14-21); Doc. 124-18, p. 3 (Studdard Aff., ¶ 8)).
From January 2012 to May 2013, plaintiff did, however, serve as a reviewer
for different organizations. (Doc. 112-10, p. 79 (Studdard Dep., p. 312, lines 423)). In early 2014, plaintiff published one primary author publication entitled,
“Fostering Entrepreneurship in Secondary Education”; plaintiff also had one
primary author conference presentation, entitled “Exploratory Study of Black
Entrepreneurial Self-Efficacy, Locus of Control and Entrepreneurial Intentions.”
(Doc. 112-10, p. 38 (Studdard Dep., p. 145, line 10 – p. 146, line 1)); Doc. 124-18,
p. 3 (Studdard Aff., ¶ 8) (“Fostering Entrepreneurship in Secondary Education”
published in early 2014)). Both the article and the conference presentation were
published and/or presented after plaintiff had submitted her 2013 tenure
application. (Doc. 112-10, p. 39 (Studdard Dep., p. 151, lines 1-8 (conference
presentation made in February 2014); Doc. 112-10, p. 92 (Studdard Dep., p. 363,
lines 11-22)).

26

II.

STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A).

“The court need consider only the cited materials, but it may

consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When considering a summary judgment motion, the Court must view the
evidence in the record in the light most favorable to the non-moving party and
draw reasonable inferences in favor of the non-moving party. White v. Beltram
Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). “[A]t the summary
judgment stage[,] the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “‘Genuine
disputes [of material fact] are those in which the evidence is such that a reasonable
jury could return a verdict for the non-movant. For factual issues to be considered
27

genuine, they must have a real basis in the record.’” Evans v. Books-A-Million,
762 F.3d 1288, 1294 (11th Cir. 2014) (quoting Mize v. Jefferson City Bd. of Educ.,
93 F.3d 739, 742 (11th Cir. 1996)). “A litigant’s self-serving statements based on
personal knowledge or observation can defeat summary judgment.” United States
v. Stein, 881 F.3d 853, 857 (11th Cir. 2018); see Feliciano v. City of Miami Beach,
707 F.3d 1244, 1253 (11th Cir. 2013) (“To be sure, Feliciano’s sworn statements
are self-serving, but that alone does not permit us to disregard them at the summary
judgment stage.”). Even if the Court doubts the veracity of the evidence, the Court
cannot make credibility determinations of the evidence. Feliciano, 707 F.3d at
1252 (citing Anderson, 477 U.S. at 255). However, conclusory statements in a
declaration cannot by themselves create a genuine issue of material fact. See Stein,
881 F.3d at 857 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
In sum, the standard for granting summary judgment mirrors the standard for
a directed verdict. Anderson, 477 U.S. at 250 (citing Brady v. Southern R. Co., 320
U.S. 476, 479–480 (1943)). The district court may grant summary judgment when,
“under governing law, there can be but one reasonable conclusion as to the
verdict.” Id. at 250. “[T]here is no issue for trial unless there is sufficient evidence
favoring the nonmoving party . . . . If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.”
(internal citations omitted).
28

Id. at 249-50

III.

DISCUSSION
Plaintiff argues that she suffered an adverse employment action as a result of

taking FMLA leave when Dr. McDaniel refused to forward her 2012 tenure
application for review when it would have been evaluated under 2003 Faculty
Handbook.

Plaintiff alleges that this action – along with the extension of her

probationary period requested by Dr. McDaniel and Dr. Sarkar – caused her to
have to submit her tenure application the next year, when it was subjected to the
more stringent criteria in the 2011 Faculty Handbook. Plaintiff asserts that these
actions resulted in the denial of tenure and ultimately her termination from
Alabama A&M. 6
The remaining defendants advance two main arguments in support of their
Motion for Summary Judgment.

First, they argue that Eleventh Amendment

immunity bars plaintiff’s claim and that no exception pursuant to Ex parte Young,
209 U.S. 123 (1908), applies. Second, they argue that, even if an exception to
sovereign immunity applies, plaintiff cannot show that she was retaliated against
because she took FMLA leave. The Court will address each argument in turn.

6

In her amended complaint, plaintiff also alleged that she suffered an adverse employment
action when her 2012-2013 faculty evaluation was falsely downgraded and when Dr. McDaniel
failed to recommend her for tenure. (Doc. 79, p. 15). Plaintiff does not advance any argument
that these actions constituted adverse employment actions in her response (Doc. 123) to the
Motion for Summary Judgment, and therefore the Court finds that they have been abandoned.
29

A.

The applicability of the Ex parte Young doctrine

Because an assertion of Eleventh Amendment immunity essentially
challenges a court’s subject matter jurisdiction, the Court considers this issue first.
Seaborn v. State of Fla., Dep't of Corr., 143 F.3d 1405, 1407 (11th Cir. 1998).
Furthermore, an assertion of Eleventh Amendment immunity must be resolved
before a court may address the merits of an underlying claim. Id.
The Eleventh Amendment to the United States Constitution states, “The
Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. “Although the express language of the amendment does not bar
suits against a state by its own citizens, the Supreme Court has held that an
unconsenting state is immune from lawsuits brought in federal court by the state’s
own citizens.” Carr v. City of Florence, Ala., 916 F.2d 1521, 1524 (11th Cir.
1990) (citing Hans v. Louisiana, 134 U.S. 1, 10 (1890)).

Nonetheless, the

Supreme Court has found that Eleventh Amendment immunity is not absolute. To
that end, the Eleventh Circuit has discussed three exceptions to the doctrine of
sovereign immunity: consent, abrogation, and under Ex Parte Young, 209 U.S. 123
(1908), and its progeny. It is the third exception that is at issue in this action. (See

30

Doc. 91, pp. 11 (finding that the first two exceptions are not applicable in this
action)).
In particular, the Eleventh Circuit has recognized that there is a long and
well-recognized exception to sovereign immunity for suits against state officers [in
their official capacities] seeking prospective equitable relief to end continuing
violations of federal law.” Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,
1336 (11th Cir. 1999) (emphasis in original) (citing Ex parte Young); see also
Papasan v. Allain, 478 U.S. 265, 277–78 (1986) (“Consequently, Young has been
focused on cases in which a violation of federal law by a state official is ongoing
as opposed to cases in which federal law has been violated at one time or over a
period of time in the past, as well as on cases in which the relief against the state
official directly ends the violation of federal law as opposed to cases in which that
relief is intended indirectly to encourage compliance with federal law through
deterrence or directly to meet third-party interests such as compensation.”).
“Therefore, the Eleventh Amendment bars suits against state officials in federal
court seeking retrospective or compensatory relief, but does not generally prohibit
suits seeking only prospective injunctive or declaratory relief.” Pryor, 180 F.3d at
1337. The Eleventh Circuit has recognized that equitable relief in the form of
reinstatement of employment constitutes prospective injunctive relief that falls
within the scope of the Ex parte Young exception and is not barred by the Eleventh
31

Amendment. Lane v. Cent. Alabama Cmty. Coll., 772 F.3d 1349, 1351 (11th Cir.
2014); Lassiter v. Alabama A & M Univ., Bd. of Trustees, 3 F.3d 1482, 1485 (11th
Cir. 1993), reh'g en banc granted, opinion vacated, 19 F.3d 1370 (11th Cir. 1994),
and on reh'g, 28 F.3d 1146 (11th Cir. 1994) (“To the extent that he still seeks the
prospective relief of reinstatement, his claim against Covington in his official
capacity is not barred by the Eleventh Amendment.”).

The Ex parte Young

doctrine cannot, however, be used to compel an executive official to undertake a
discretionary task. Seminole Tribe of Fla. v. State of Fla., 11 F.3d 1016, 1028-29
(11th Cir. 1994).
Here, plaintiff seeks reinstatement to her position at Alabama A&M, in
addition to tenure. (Doc. 79, p. 16 (demanding reinstatement with no mention of
tenure); Doc. 112-10, p. 88 (Studdard Dep., p. 346, lines 3-9) (testifying that she
seeks reinstatement with tenure)).

Although not entirely clear, the remaining

defendants appear to argue that the remedy of reinstatement is not available to
plaintiff because she has not alleged her termination was retaliation for exercising
her FMLA rights, only that she failed to obtain tenure because of same. Cf. Lane,
772 F.3d at 1351 (finding that, in a case where employee claims wrongful
termination, a request for reinstatement constitutes prospective injunctive relief
that falls within the scope of Ex parte Young).

32

At this stage and in the context of this immunity analysis, the Court,
construing the facts in the light most favorable to plaintiff, will permit her claim to
proceed insofar as it requests injunctive relief in the form of reinstatement.
Plaintiff expressly demanded reinstatement as a form of relief in her amended
complaint. Moreover, the remaining defendants have not provided any argument
or law to persuade the Court to find differently at this juncture.
Whether injunctive relief in the form of an award of tenure is consistent with
the Ex parte Young doctrine is another story. The remaining defendants have
argued that the Ex parte Young doctrine does not apply to compel state officials to
engage in discretionary acts such as tenure decisions. The remaining defendants
thus argue that, even if the law permits reinstatement as a form of injunctive relief,
it does not permit an award of tenure to plaintiff. The Court agrees.
For one, plaintiff has not addressed this argument or pointed to any Eleventh
Circuit law providing that an award of tenure is not a discretionary act.

Cf.

Ashokkumar v. Dwyer, 106 F. Supp. 3d 1041, 1049 (D. Neb. 2015) (discussing Ex
parte Young and finding that a Court cannot compel an advisor to accept a doctoral
topic). Second, while reinstatement has been treated as a form of prospective relief
that may be sought via Ex parte Young, there is an absence of case law with respect
to tenure. The Court cannot find a binding case on point. Third, the facts of this
case demonstrate that an award of tenure is not a ministerial decision, but is rather
33

a highly academic, peer-review process in which discretion is involved. (Doc.
112-5, p. 5 (Hugine Dep., p. 13, lines 3-5)). Consequently, the Court finds that,
under the facts of this case, an award of tenure would be discretionary and is
therefore not a permissible form of relief. See, e.g., Price v. Univ. of Alabama, 318
F. Supp.2d 1084, 1089 (N.D. Ala. 2003) (finding that Eleventh Amendment barred
an order from the court to give plaintiff a post-termination hearing). 7
Now that the Court has decided that plaintiff may proceed with her claim
insofar as it requests reinstatement, it must determine against whom the claim may
proceed. While the undisputed testimony in this action indicates that Dr. Hugine
has final authority to award tenure, it is not as clear whether Dr. Hugine would
retain sole authority to reinstate plaintiff. In his deposition testimony, Dr. Hugine
testified that he only has sole authority to hire people that serve on the President’s
cabinet. (Doc. 112-5, p. 9 (Hugine Dep., p. 30, lines 12-21)). Dr. Hugine testified
that Dr. Wims would make the “ultimate recommendation” with respect to the
reinstatement of plaintiff. (Doc. 112-5, p. 9 (Hugine Dep., p. 31, line 7- p. 32, line
7

Even if plaintiff’s claim would be permitted to proceed insofar as she seeks an award of tenure,
such a claim would only be against Dr. Hugine in his official capacity. A plaintiff may not use
Ex parte Young to force a state official to perform an action that he or she lacks authority to
perform. See Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999)
(“[F]ederal courts have refused to apply Ex parte Young where the officer who is charged has no
authority to enforce the challenged statute.”); Boglin v. Bd. of Trustees of Alabama Agric. &
Mech. Univ., 290 F. Supp. 3d 1257, 1266 (N.D. Ala. 2018) (noting that the Ex parte Young
exception only applies in instances where the state officer named as a defendant in his official
capacity has the authority to enforce an unconstitutional act in the name of the state.). It is
undisputed that Dr. Hugine alone has final authority to award tenure.
34

7)).

Dr. Hugine also testified that the “senior personnel officers are the final

authority in hiring [instructors]. The only ones that I have responsibility for are
those persons that report to the office of the President.”
(Hugine Dep., p. 36, lines 10-15)).

(Doc. 112-5, p. 10

This conflicts to some extent with Alabama

law stating that the hiring and firing of Alabama A&M staff is under the control of
the President. See Boglin v. Bd. of Trustees of Alabama Agric. & Mech. Univ., 290
F. Supp. 3d 1257, 1265 (N.D. Ala. 2018) (“Alabama law is clear on its face that
day-to-day University operating decisions, such as the hiring and firing of
University staff, are under the control of the president, a conclusion confirmed by
the Alabama Supreme Court which recently explained that ‘[e]mployment
decisions are clearly within the job description of the president of the
University.’”) (citing Ex parte Hugine, 256 So. 3d 30) (Ala. Mar. 17, 2017)); Ex
parte Hugine, 256 So. 3d 30, 47 (Ala. 2017), reh'g denied (Jan. 12, 2018)
(“Employment decisions are clearly within the job description of the president of
the University, and the provost is specifically designated to help the president in
making such decisions. See § 16–49–23, Ala. Code 1975.”). This also conflicts to
some extent with Dr. Wims’s affidavit, which states that he provides guidance and
recommendation on employment, promotion, and termination decisions. (Doc.
112-15, p. 3 (Wims Aff., ¶ 3)).

35

Therefore, with respect to reinstatement of plaintiff, based on the testimony
by Dr. Hugine, there is a fact issue with respect to whether Dr. Hugine alone
retains authority to reinstate her or whether this authority has been delegated to Dr.
Wims. Thus, the Court will permit the FMLA retaliation claim to proceed against
Dr. Hugine and Dr. Wims insofar as plaintiff seeks reinstatement, as it is not clear
under these circumstances whether one or both, in actuality, retain authority to
reinstate her. See, e.g., Boglin, 290 F. Supp. 3d at 1271 n.7 (noting that, had the
Director of Career Development Services at Alabama A&M been delegated hiring
and firing authority by the president, the official capacity claims against her would
not be barred by the Eleventh Amendment).
The Court will dismiss the FMLA retaliation claim against Dr. McDaniel
and Dr. Smith on the basis that they lack the authority to reinstate plaintiff. In
other words, the Ex parte Young exception is not applicable to them, and therefore
they are due summary judgment. See Seminole Tribe of Fla. v. State of Fla., 11
F.3d 1016, 1029 (11th Cir. 1994), aff'd sub nom. Seminole Tribe of Fla. v. Fla.,
517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996) (“Unless one of the three
exceptions—consent, abrogation, or Ex parte Young—applies, the Eleventh
Amendment serves as a jurisdictional bar and precludes federal court adjudication
over these suits.”).

36

B.

FMLA Retaliation

The Court will now consider the merits of plaintiff’s FMLA retaliation
claim. Under the FMLA, an eligible employee may take “a total of 12 workweeks
of leave during any 12-month period” because of a “serious health condition.” 29
U.S.C. § 2612(a)(1)(D). “To preserve and enforce these rights, ‘the FMLA creates
two types of claims: interference claims, in which an employee asserts that his
employer denied or otherwise interfered with his substantive rights under the Act .
. . [,] and retaliation claims, in which an employee asserts that his employer
discriminated against him because he engaged in activity protected by the Act.”
Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d 1261, 1267 (11th
Cir. 2017) (quoting, in part, Strickland v. Water Works & Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)). Plaintiff’s claim falls into the
second category.
To succeed on a retaliation claim, plaintiff must show that she was
intentionally discriminated against in the form of an adverse employment action
for having exercised an FMLA right.

Strickland, 239 F.3d at 1207. That is,

plaintiff must show that the action at issue was motivated by an impermissible
retaliatory or discriminatory animus. Id. As the Court has noted, plaintiff argues
that she suffered an adverse employment action due to Dr. McDaniel and thendean Dr. Sarkar refusing to forward her 2012 tenure application for review, when it
37

would have been evaluated under the less stringent standards set forth in the 2003
Faculty Handbook; this resulted in her having to submit a 2013 tenure application,
which was subject to more stringent standards under the 2011 Faculty Handbook.
Plaintiff argues that this action ultimately resulted in her tenure being denied. In
response, the remaining defendants argue that, regardless of the Ex parte Young
doctrine, plaintiff cannot prove her FMLA retaliation claim either through direct
evidence or via the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
1.

No direct evidence of retaliation

Plaintiff argues that there is direct evidence of retaliation in this action in the
form of Dr. McDaniel’s October 11/November 30 letters, which requested that her
probationary period be extended due to the fact that she “encountered some
medical complications during her pregnancy which resulted in an extended
hospital stay medical leave.” (Doc. 112-17, p. 7 (McDaniel, Ex. 1); see also Doc.
112-14, p. 43) (same).
The Eleventh Circuit “defines direct evidence of discrimination as evidence
which reflects a discriminatory or retaliatory attitude correlating to the
discrimination or retaliation complained of by the employee.”

Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (internal citation and
quotation marks omitted). Direct evidence, if believed, proves the existence of a
38

fact without inference or presumption. Burrell v. Bd. of Trs. of Ga. Military Coll.,
125 F.3d 1390, 1393 (11th Cir. 1997). Thus, the Eleventh Circuit has stated:
As our precedent illustrates, “only the most blatant remarks, whose
intent could mean nothing other than to discriminate on the basis of”
some impermissible factor constitute direct evidence of
discrimination. Rojas v. Florida, 285 F.3d 1339, 1342 n. 2 (11th
Cir.2002) (quoting Schoenfeld [v. Babbitt], 168 F.3d 1257, 1266)
(citations and quotations omitted); see Carter v. City of Miami, 870
F.2d 578, 582 (11th Cir.1989). If the alleged statement suggests, but
does not prove, a discriminatory motive, then it is circumstantial
evidence. See Burrell, 125 F.3d at 1393.
Wilson, 376 F.3d at 1086.
The Court finds that, even construing the facts in the light most favorable to
plaintiff, the October 11/November 30 letters do not constitute direct evidence of
retaliation. On their face, the October 11/November 30 letters simply provide a
reason for the requested extension of plaintiff’s probationary period. They do not,
on their face, demonstrate that the request was due to a discriminatory or
retaliatory intent. See, e.g., Jones, 854 F.3d at 1271 (finding that comments that
corporate would not like timing of FMLA leave and comment that plaintiff was
being suspended because corporate believed that plaintiff had abused and misused
his FMLA leave were not direct evidence of retaliation); see also Burrell, 125 F.3d
at 1393 (finding statement from CEO to plaintiff that he wanted to hire a man for a
certain position because too many women filled officer positions only suggested a
discriminatory motive and was therefore circumstantial, not direct, evidence).

39

Indeed, any retaliatory intent in making the request for the extension of the
probationary period must be inferred or proven by testimony. Therefore, the Court
will examine whether there is circumstantial evidence of retaliation.
2.

Circumstantial evidence of retaliation

When a plaintiff asserts a claim of retaliation under the FMLA and has no
direct evidence of intent, the Eleventh Circuit has stated that the burden-shifting
framework established by the Supreme Court in McDonnell Douglas applies.
Thus, to state a claim for retaliation, a plaintiff must allege that (1) she engaged in
statutorily protected activity; (2) she suffered an adverse employment action; and
(3) the decision was causally related to the protected activity. Strickland, 239 F.3d
at 1207. If a plaintiff establishes a prima facie case of retaliation, the burden then
shifts to the employer to provide a legitimate, non-discriminatory reason for the
adverse employment action. Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261,
1268 (11th Cir. 2008). If the employer does so, the plaintiff must then show that
the employer’s proffered reason was pretextual. Id. “Pretext is proven if it is
shown that the reason was false and that the action was actually motivated by
retaliation.” Yoosun Han v. Emory Univ., 658 F. App'x 543, 548 (11th Cir. 2016).
The parties do not dispute that plaintiff engaged in statutorily protected
activity. Therefore, the Court will examine whether plaintiff can show that she

40

was subjected to an adverse employment action and that the adverse employment
action was causally related to the FMLA leave.
a.

Prima facie case – adverse employment action

The crux of plaintiff’s claim is that Dr. McDaniel and Dr. Sarkar held back
her 2012 tenure application, which caused her to be evaluated by the more
stringent tenure criteria when she submitted her 2013 tenure application. Plaintiff
alleges that, along with holding back her 2012 tenure application, Dr. McDaniel
and Dr. Sarkar requested an extension of her probationary period. Plaintiff argues
that these events resulted in the denial of her 2013 tenure application because it
was evaluated under the more stringent tenure criteria. The remaining defendants
argue that these events did not constitute adverse employment actions.
In Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006), the Supreme Court addressed the meaning of “adverse employment action”
in the context of Title VII retaliation claim. The Supreme Court found that “a
plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, ‘which in this context means it well might have
‘dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Id. (quoting, in part, Rochon v. Gonzales, 438 F.3d 1211, 1219
(C.A.D.C. 2006)). While the Eleventh Circuit has not expressly stated whether the
Burlington Northern applies in the context of FMLA retaliation claims, in an
41

unpublished opinion it has assumed, without deciding, that it does. See Foshee v.
Ascension Health-IS, Inc., 384 F. App'x 890, 891 (11th Cir. 2010) (assuming,
without deciding, that the Burlington Northern standard applies to FMLA
retaliation claims). Thus, the Court will do the same.
Construing the facts in the light most favorable to plaintiff, the Court finds
that the holding back of her 2012 application could constitute an adverse
employment action. Plaintiff testified that, during the meeting with Dr. McDaniel
and Dr. Sarkar, she was told that her 2012 tenure application was going to be held
back, and that she had no choice in the matter.

Although Dr. McDaniel’s

testimony differs from plaintiff’s, the Court must accept plaintiff’s version of
events at this juncture.

Plaintiff argues that not only was her 2012 tenure

application not considered, but the act of holding it back prevented the tenure
criteria set forth in the 2003 Faculty Handbook from being applied to her 2012
application.

Plaintiff asserts that, instead, she had to submit a 2013 tenure

application the next year, which was evaluated under the more stringent tenure
criteria set forth in the 2011 Faculty Handbook. The Court finds that a jury could
find this to be a materially adverse employment action that would dissuade a
reasonable employee from exercising her FMLA rights. See, e.g., Crawford v.
Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (“In the instant case, we have no doubt
but that Crawford suffered a materially adverse action in the form of the
42

unfavorable performance review she received (that affected her eligibility for a
merit pay increase) after she complained of racial discrimination.”).
To rebut this argument, the remaining defendants argue that the undisputed
evidence shows that the 2011 Faculty Handbook did not substantively change the
tenure criteria set forth in the 2003 Faculty Handbook. The remaining defendants
argue that the tenure criteria in the 2011 Faculty Handbook simply clarified the
tenure criteria in the 2003 Faculty Handbook. In short, the remaining defendants
argue that the tenure criteria in both handbooks were essentially the same. The
Court finds that this is an issue of fact.
The testimony by Dr. Wims that there were no substantive changes to the
2011 Faculty Handbook does not jibe with his deposition testimony that, while the
Board of Trustees had approved the 2011 Faculty Handbook, they had requested
additional time to fully implement parts of it. (Doc. 112-3, p. 6 (Wims Dep., p. 18,
lines 12-19)).

Moreover, Dr. Wims’s assertion that there were no substantive

changes to the 2003 Faculty Handbook does not jibe with the May 18, 2012,
memoranda and December 4, 2012, memoranda sent to plaintiff reminding her to
apply for tenure. The May 18, 2012, memorandum specifically stated that, while
the promotion and tenure process would follow those outlined in the 2011 Faculty
Handbook, plaintiff’s dossier would be evaluated under the criteria in the 2003
Faculty Handbook. (Doc. 79, ¶ 24; Doc. 112-1, p. 17; Doc. 112-2, p. 15; Doc.
43

112-16, p. 155 (Wims Aff., Ex. 3); Doc, 112-16, p. 12 (Wims Aff., Ex. 6)). On the
other hand, the December 4, 2012, memorandum informed plaintiff that her dossier
would be evaluated under the criteria set forth in the 2011 Faculty Handbook. If
the tenure criteria did not substantively change, it does not follow that one would
need to be explicit about which tenure criteria would apply. Similarly, if the tenure
criteria did not substantively change, it does not follow that why additional time
was needed to implement it.

Therefore, the Court finds that plaintiff has

sufficiently demonstrated that she suffered an adverse employment action by
having her 2012 tenure application held back.

Whether the holding back of

plaintiff’s 2012 tenure application ultimately resulted in the denial of tenure the
next year – something that the remaining defendants do admit is an adverse
employment action (doc. 112-1, p. 42) – is a different consideration.
b.

Prima facie case – causally related

Plaintiff must still prove that the adverse employment action suffered was
causally related to the protected activity.

The Court finds that the causal

connection is satisfied with respect to the alleged holding back of plaintiff’s 2012
tenure application. “Generally, a plaintiff can show the two events are not wholly
unrelated if the plaintiff shows that the decision maker was aware of the protected
conduct at the time of the adverse employment action.” Krutzig v. Pulte Home
Corp., 602 F.3d 1231, 1234 (11th Cir. 2010).
44

Here, it is undisputed that Dr.

McDaniel was aware of her FMLA leave at the time that he allegedly held back her
2012 application.

Additionally, in the October 11/November 30 letters, he

expressly requested an extension of plaintiff’s probationary period due to her
extended medical leave.

Moreover, whether plaintiff’s 2012 tenure application

was held back is a disputed fact, along with the circumstances behind the requested
extension of plaintiff’s probationary period.

Thus, the FMLA leave and the

holding back of the 2012 tenure application are not wholly unrelated.
On the other hand, the Court disagrees that the denial of plaintiff’s tenure
was causally related to her FMLA leave. It is undisputed that Dr. Hugine was the
sole decision maker regarding tenure. There is simply no evidence, other than
plaintiff’s own speculation, that Dr. Hugine was aware of plaintiff’s FMLA leave.
Indeed, Dr. Hugine testified that he does not recall knowing about it, and there is
not any probative evidence indicating that he did. Even plaintiff testified that she
does not have any information that Dr. Hugine reviewed documents indicating that
she took medical leave or otherwise knew of it. See, e.g., Rudy v. Walter Coke,
Inc., 613 F. App’x 828, 830 (11th Cir. 2015) (“If the evidence shows that a
decision maker was unaware of an employee's request to take FMLA leave at the
time of the decision to terminate the employee, the employer is entitled to
summary judgment.”).

45

To

overcome this

obstacle,

plaintiff

argues

that Dr.

McDaniel’s

discriminatory animus can be imputed to Dr. Hugine under a “cat’s paw” theory.
“[D]iscriminatory animus may be imputed to a neutral decision maker under a
‘cat's paw’ theory if (1) a supervisor performed an act motivated by animus that
was intended to cause an adverse employment action, and (2) the act was a
proximate cause of the adverse employment action.” Rudy v. Walter Coke, Inc.,
613 F. App’x 828, 830 (11th Cir. 2015).

“A plaintiff may establish causation

under this theory if the decision maker either followed another supervisor’s biased
recommendation without independently investigating the complaint against the
plaintiff or conducted an independent investigation but relied on facts provided by
the biased supervisor.” Id. at 830-31. The Eleventh Circuit has not yet determined
whether a plaintiff may proceed under a cat’s paw theory in the FMLA context. Id.
Even under a cat’s paw theory, however, plaintiff cannot show that the
holding back of her 2012 tenure application by Dr. McDaniel proximately resulted
in the ultimate denial of her tenure by Dr. Hugine in March 2014. First, the
undisputed evidence is that Dr. Hugine had sole power and discretion to award or
deny tenure. Second, when plaintiff submitted her 2013 tenure application, she did
so directly to the Promotion and Tenure Committee of the College of Business and
Public Affairs, which recommended her for tenure; plaintiff’s 2013 tenure
application did not go through Dr. McDaniel. Plaintiff’s 2013 tenure application
46

was then sent to the university-wide Promotion and Tenure Committee, which did
not recommend her for tenure due to “insufficient number of publications.” (Doc.
112-16, p. 169 (Wims Aff., Ex. 8)).

Dr. Wims then independently reviewed

plaintiff’s 2013 application for tenure and did not recommend her for tenure. The
rationale for denial of tenure was lack of refereed, juried, and/or peer reviewed
scholarly productivity as first author during the probationary period. Plaintiff does
not allege a discriminatory animus on the part of the university-wide Promotion
and Tenure Committee or Dr. Wims. Plaintiff appealed the denial of tenure by Dr.
Hugine, expressly asserting that the tenure criteria in the 2003 Faculty Handbook
should have been applied to her application. The appeal was then reviewed by the
Tenure and Appeals Committee, which found no impropriety, inappropriate
behavior, or mismanagement of the pre-tenure review process and concurred that
tenure should be denied based on insufficient scholarly productivity.
In sum, the link between any alleged discriminatory animus by Dr.
McDaniel with respect to the holding back of the 2012 tenure application and the
ultimate tenure decision by Dr. Hugine that was upheld on appeal is too attenuated
and based on mere speculation. See, e.g., Pennington v. City of Huntsville, 261
F.3d 1262, 1270 (11th Cir. 2001) (“Where a decision maker conducts his own
evaluation and makes an independent decision, his decision is free of the taint of a
biased subordinate employee.”); Stimpson v. City of Tuscaloosa, 186 F.3d 1328,
47

1332 (11th Cir. 1999) (“To the contrary, the evidence shows that the Board has the
sole power and discretion to terminate police officers, that its members are
appointed by the Governor of Alabama, that it conducted a three day hearing to
investigate the charges, and that during the hearing Stimpson was represented by
legal counsel and was allowed to put on defense evidence and witnesses . . . . We
need not announce a bright line at which an independent investigation becomes a
rubber stamp to resolve this case because the record before us does not contain any
hint of a cat’s paw arrangement.”). Thus, there is simply no evidence of a cat’s
paw arrangement between Dr. McDaniel and Dr. Hugine.
Plaintiff attempts to connect the ultimate tenure denial decision with the
holding back of her 2012 tenure application by arguing that, had she been
evaluated under the less stringent standards in the 2003 Faculty Handbook, she
would have been granted tenure. Again, the Court finds this speculative in nature.
While the Court has found that, viewing the facts in the light most favorable to
plaintiff, the tenure criteria in the 2003 Faculty Handbook were less stringent, this
does not automatically mean that plaintiff would have been granted tenure had her
2012 tenure application been considered. In fact, Dr. McDaniel testified that he
would have not recommended her for tenure in 2012-2013, when she submitted her
2012 tenure application.

48

Consequently, the Court finds that plaintiff has only shown a prima facie
case of FMLA retaliation with respect to her claim that Dr. McDaniel held back
her 2012 tenure application, but not with respect to the ultimate denial of tenure. 8
c.

Legitimate, non-discriminatory reason

The burden shifts to the remaining defendants to provide a legitimate nondiscriminatory reason for the alleged holding back of plaintiff’s 2012 tenure
application. Dr. McDaniel has testified that he offered to request an extension of
plaintiff’s probationary period to permit her more time to engage in scholarly
activity, and that he did so as an accommodation to plaintiff. While the Court
understands that plaintiff disputes this, it simply considers this as the proffered
legitimate, non-discriminatory reason. There is evidence in the record to support
Dr. McDaniel’s assertion. In the 2011-2012 evaluation, Dr. McDaniel encouraged
publications.

Indeed, plaintiff acknowledged Dr. McDaniel’s desire for more

publications.

Even under the 2003 Faculty Handbook, publication in referred

journals, scholarly books, chapters in scholarly books, and research reports was
required for tenure.

It is undisputed that, at the time of her 2012 tenure

application, plaintiff had only produced one refereed publication as first chair in
2011 and while employed at Alabama A&M. Thus, the Court finds that the there
8

In their briefs, the parties address whether plaintiff was treated differently than similarly
situated faculty with respect to the award of tenure. Because the Court finds that there is no
causal relationship between plaintiff’s FMLA leave and the denial of tenure, it will not address
these arguments.
49

was a legitimate non-discriminatory reason for the holding back of the 2012 tenure
application and tandem request for an extension of the probationary period.
Therefore, plaintiff must show that this proffered legitimate, non-discriminatory
reason was pre-textual.
d.

Plaintiff cannot demonstrate pretext.

Plaintiff argues that the holding back of her 2012 application and request for
probationary extension in order to permit her to increase her scholarly activity was,
in actuality, retaliation for her taking FMLA leave. First, plaintiff points to Dr.
McDaniel’s negative change in attitude when she was pregnant and setting her
class time so that she would be walking to her vehicle after dark. However, these
things occurred before plaintiff’s FMLA leave.
Second, plaintiff cites the formal reprimand for her non-attendance at a QEP
event shortly after she returned to work; Dr. McDaniel’s added handwritten
comment on her 2011-2012 evaluation that she had not attended a conference
agreed upon as a goal for 2012-2013, when the evaluation did not cover that time
period; Dr. McDaniel changing her 2012-2013 faculty evaluation after they had
already agreed on the score; and inserting himself into her tenure appeals process
by writing an unsolicited letter. These events, however, do not speak to whether
Dr. McDaniel intentionally discriminated against her for taking FMLA leave via
the holding back of her 2012 tenure application. See Rudy v. Walter Coke, Inc.,
50

613 F. App'x 828, 830 (11th Cir. 2015) (“To state a claim for FMLA retaliation,
the plaintiff must show that the defendant intentionally discriminated against him
because he engaged in statutorily protected activity.”).

Instead, they are

conclusory allegations and assertions. See Bailey v. City of Daytona Beach Shores,
560 F. App'x 867, 871 (11th Cir. 2014) (“To survive summary judgment, specific
facts showing pretext are needed; ‘[m]ere conclusory allegations and assertions
will not suffice.’” (quoting, in part, Earley v. Champion Int'l Corp., 907 F.2d
1077, 1081 (11th Cir.1990)).
Third, plaintiff argues that the requested extension of her probationary
period constituted pretext because the probationary period under the 2011 Faculty
Handbook was four years. That is, plaintiff argues that, while the tenure criteria in
the 2003 Faculty Handbook were in effect when she submitted her 2012 tenure
application, the four-year probationary period found in the 2011 Faculty Handbook
– not the three-year probationary period in the 2003 Faculty Handbook – should
have applied to her at that time. Because plaintiff claims that she was already
subject to a four-year probationary period, there was no need for Dr. McDaniel and
Dr. Sarkar to request an extension of her probationary period. Plaintiff thus argues
that it was an unnecessary request; therefore, rather than purportedly helping her,
Dr. McDaniel and Dr. Sarkar were ensuring that she would be subject to more
stringent tenure criteria when she applied for tenure the next year, in 2013.
51

While the record is not clear as to why the remaining defendants were acting
under the assumption that plaintiff was subject to the three-year probationary
period, it appears that everyone, including plaintiff, was operating under this
assumption. On May 18, 2012, Dr. Wims sent plaintiff a memorandum reminding
her that she was “to apply for tenure this upcoming academic year 2012-2013.”
(Doc. 112-2, p. 15; Doc. 112-16, p. 155 (Wims Aff., Ex. 3)). Plaintiff does not
allege that Dr. Wims had any retaliatory animus toward her.

According to

plaintiff, she responded to the memorandum by submitting a tenure application.
There is nothing, other than conjure and speculation, to indicate that the
application of a three-year probationary period (which resulted in a request for an
extension) to plaintiff at the time was nefarious or done with the purpose of
making sure that she had more stringent criteria applied to her tenure application
submitted the next year.
Fourth, while not argued by plaintiff, temporal proximity does not help
plaintiff establish pretext either, as around nine months passed between the end of
her FMLA leave and the holding back of her 2012 tenure application. See, e.g.,
Scott v. Honda Mfg. of Alabama, LLC, No. 1:06-CV-1717-VEH, 2007 WL
9711442, at *10 (N.D. Ala. July 30, 2007), aff'd sub nom. Scott v. Honda Mfg. of
Alabama, LLC., 270 F. App'x 814 (11th Cir. 2008) (“Scott is similarly unable to

52

demonstrate pretext through the temporal proximity of her FMLA leave request in
October and the decision to deny her leave request and fire her in December.”).
In sum, to show pretext, “a plaintiff must come forward with evidence,
including the previously produced evidence establishing the prima facie case,
sufficient to permit a reasonable factfinder to conclude that the reasons given by
the employer were not the real reasons for the adverse employment decision.”
Barker v. R.T.G. Furniture Corp., 375 F. App’x 966, 968 (11th Cir. 2010) (internal
quotation marks omitted). Plaintiff has failed to produce any such evidence here.
Therefore, the Court will grant summary judgment to Dr. Hugine and Dr. Wims as
well. 9
IV.

CONCLUSION
For the reasons stated, the Motion for Summary Judgment (Doc. 112) is

GRANTED.
A final judgment will be entered separately.

9

The Court requested that the parties brief the issue of whether injunctive relief, in the form of
reinstatement, would be available to plaintiff if she could establish a prima facie case of
retaliation with respect to the alleged “holding back” of her 2012 tenure application. Because the
Court has found that plaintiff cannot show pretext, it declines to make a ruling on this issue. The
Court observes, however, that even if plaintiff were to prevail, it appears that the proportionate
remedy would be for plaintiff’s 2012 tenure application to be considered under the 2003 Faculty
Handbook; however, this would not automatically result in plaintiff being granted tenure (and
thus a permanent position at Alabama A&M). How this would ultimately square with plaintiff’s
requested relief of reinstatement and Ex parte Young and its progeny is an issue the Court need
not consider today.

53

DONE and ORDERED this May 21, 2019.

_________________________________
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

54